Pellissier v Melville & Ors [2006] NTSC 93

[18] Upon being made redundant the plaintiff intends to roll over her entire superannuation entitlement into another approved fund. The plaintiff gave evidence that Mr Kilduff had superannuation entitlements of about $360,000. There was no evidence tendered about the plaintiff's weekly costs of living. It was not suggested that she and Mr Kilduff had any difficulty meeting the mortgage payments on the two properties that they jointly own. Apart from the need to pay the two mortgages and to accumulate more funds towards her retirement, it does not appear that the plaintiff had any other financial needs. She had given some consideration to establishing a riding school of some kind on the property at Produce Road but the plans for such a project were not at all well developed.

[19] The testator was born on 31 January 1933 in Townsville. He was an electrician by trade. He had four children, namely the plaintiff, Wayne Melville, Glen Melville and Natalie Amanda Melville. The testator died on 4 June 2004. He left an estate with a net value of at least $615,115.08. The principal assets in the estate are Lot 7 Girraween Road, Howard Springs which is valued at approximately $300,000, Lot 8 Girraween Road, Howard Springs which is valued at approximately $150,000 and shares in various companies valued at approximately $142,000. The testator's estate was acquired partly as a result of his own endeavours and partly as the result of an inheritance.

[20] The plaintiff's mother, Dawn Zammit, and the testator separated in 1965 when the plaintiff was approximately nine years of age. The relationship between the testator and Dawn Zammit was a dysfunctional relationship largely because of the testator's alcoholism. When Ms Zammit and the testator separated the testator left Townsville in Queensland and moved to Tennant Creek in the Northern Territory. The plaintiff continued to live with her mother for the first few years after her parents separated. At first the plaintiff, her mother and her brother, Wayne, moved into the testator's mother's house in Townville. They lived there for about six months. They then moved to another suburb in Townsville where the plaintiff's mother bought a house.

[21] The plaintiff's mother worked as a barmaid. She was unable to keep up the payments on the house and ultimately the house was sold and the family moved to Mt Isa. At some point in time the plaintiff was sent to stay with her mother's brother and his wife. Her brothers were sent to stay with the woman who had been Glen's child minder. The plaintiff and her brother, Wayne, were then sent to live with their mother's parents, Mr & Mrs Hodson. Her brother, Glen, went to live with her mother in Mt Isa.

[22] In about 1967 when the plaintiff was about 10 years of age the testator took the plaintiff and her brother, Wayne, to live with him and his de facto partner, Gloria Stitt, in Darwin. Ms Stitt also worked as a barmaid. Both the testator and Gloria Stitt were heavy drinkers. They constantly fought. Their relationship was violent. On occasion Gloria Stitt was violent towards the plaintiff and her brother, Wayne. On one occasion she came into the plaintiff's bedroom, grabbed her by the hair and dragged her around the floor.

[23] From about the age of 13 years the plaintiff was given household duties to do. Every Saturday, by herself, she had to clean the house from top to bottom including the bathroom, kitchen and floors, dusting, washing the clothes and defrosting the refrigerator (every second week). It took about six hours to thoroughly clean the house. The plaintiff also helped with the cooking each night.

[24] When the plaintiff was about 14 years of age she was sent to live with friends of the testator's for about three months because of a conflict with Gloria Stitt. When she returned home the plaintiff continued to have a poor relationship with Gloria Stitt. The plaintiff felt as though she was unwanted. There was a continual feeling of conflict and tension in the house and she felt as though the testator did not protect her and her brother, Wayne, from it.

[25] Gloria Stitt left the testator in about 1971 when the plaintiff was about 15 years of age. About six months after Gloria Stitt left the testator, the testator began living with Elizabeth Winter (nee Allpress). Ms Winter was also a drinker. She and the testator drank every day and they were often out at the Ski Club or the Trailer Boat Club.

[26] The plaintiff's feelings of being unwanted continued during the testator's relationship with Ms Winter. She also felt that the testator failed to take an interest in her welfare and to give support and encouragement to her to participate in social and sporting events with other children or young people. She was interested in horse riding. However, the testator did not support her interest in horse riding to the extent she wished. Nor did he support her interest in competitive ballroom dancing to the extent she wished.

[27] In about 1974 the testator was injured at work when he was booted off a live power pole. He fell to the ground and injured his back. He also sustained somewhere between eight and twelve broken ribs, a broken collar bone and severe bruising. He was hospitalised for a number of weeks and returned home to recuperate. He did not do any heavy work again. As a result of his injuries the testator suffered from arthritis. He had difficulty getting up out of chairs, getting into cars and going up and down stairs. He walked around slowly and he could only do light jobs. The testator continued electrical contracting until 1981 when his arthritis prevented him from working and he received the pension.

[28] In 1974 the plaintiff attempted matriculation at Darwin High School. She failed. She had been a good student at primary school. She received top marks in year 7. However, by the end of secondary school she was too emotionally confused and distracted to successfully tackle year 12.

[29] After Cyclone Tracey the plaintiff went to live in Melbourne with her mother. She lived with her mother for seven months. Towards the end of 1975 she returned to Darwin and lived with the testator and Ms Winter again. Natalie Melville was born at about the time that the plaintiff returned to Darwin from Melbourne. After she returned to Darwin the plaintiff worked full time as a ward clerk at the old Darwin Hospital.

[30] In 1976 the plaintiff successfully completed year 12 of High School at the Darwin Community College. She wanted to do a science degree. She was interested in genetics. However, she would have been required to live interstate in order to go to university to complete such a degree. There was no money or encouragement for her to do so from the testator. The plaintiff did not see how she could achieve this goal by herself so she gave up on the idea and after completing matriculation in 1976 she worked as a veterinary assistant to a local veterinarian.

[31] At the end of 1976 the plaintiff moved out of home and went to live with her boyfriend. After that she did not see the testator for about two years. Neither the testator nor the plaintiff made any effort to contact each other for a period of two years. In 1977 she joined the Commonwealth Public Service and in 1978 the plaintiff transferred to the Northern Territory Public Service.

[32] In 1978 the plaintiff began to visit the testator again. The testator and Ms Winter were then living at Girraween Road, Humpty Doo. The plaintiff was living at either Nightcliff or Casuarina. She would visit the testator about once a fortnight. These visits were emotionally difficult for her. The testator seemed to spend much of the time sitting under the house drinking.

[33] In 1979 the plaintiff started going out with Andrew McDonald. In 1981 they were married and her son, Ben, was born on 22 July 1981. By 1983 the plaintiff's marriage was in difficulty. The plaintiff sought advice from the testator about her marital situation. The testator's response to her request for advice and assistance was to tell her that it was a wife's responsibility to support her husband. Mr McDonald and the plaintiff separated and were subsequently divorced. After their separation Mr McDonald went to live with the testator. The plaintiff felt unsupported by the testator. She felt very angry and alone because she felt that the testator supported Mr McDonald rather than her. The plaintiff never forgave the testator.

[34] After Mr McDonald went to live with the testator the plaintiff did not see the testator again. She remained estranged from him until his death. This was for a period of about 23 years. During the period of her estrangement from the testator she made very few enquiries about him. The plaintiff only attempted to contact the testator on two occasions. This was despite the fact that she drove by his home twice a day for 10 years. The first occasion she attempted to contact the testator was when she was told by her mother that he was in hospital and may die because he was suffering from cancer. She wanted to reconcile with the testator before he died. The plaintiff telephoned the hospital and she spoke to Natalie Melville who told her that the testator's condition was not all that bad. The testator did not die for another four years. The second occasion the plaintiff telephoned the testator was when she thought Ms Melville had treated her with disrespect because instead of contacting the plaintiff about her son's birth date Ms Melville had spoken to other members of the family and asked them not to tell the plaintiff that Ms Melville was putting together the testator's will. The plaintiff asked the testator if she could see him. The testator did not want to see her and he hung up the telephone. It was not that the plaintiff could not find it in her heart to go and see the testator. To the extent that the evidence of the plaintiff differs from the evidence of any other witness about these matters I accept the evidence of the plaintiff. She was candid about her position. How difficult a personality the testator had is confirmed by the evidence of Mr Wayne Melville.

[35] During 1999 and 2000 the testator had a number of health problems requiring him to see doctors. He was diagnosed with Type 2 Diabetes and he was treated for an ulcerated toe. In November 2000 the testator was diagnosed with a progressive tongue tumour which required major surgery followed by radiotherapy. It was necessary for him to travel to Adelaide to receive treatment.

[36] In or about February 2002 the testator requested that a will be prepared. The will was executed by the testator on 27 February 2002. In the will the testator made the following specific bequests. He gave his daughter, Natalie Amanda Melville, all of his shares in Australia Gaslight Limited. He gave his son, Wayne Paul Melville, all his shares in Australian Pipeline Trust Limited. He gave his daughter, Natalie Amanda Melville, his real property known as 7 Girraween Road, Howard Springs together with all his personal property located on Lot 7 Girraween Road absolutely. The testator left $10,000 to each of his three grandchildren upon their attaining the age of 18 years and he gave the balance of his estate as tenants in common in equal shares to Natalie Amanda Melville, Wayne Paul Melville and Glen Melville.

[37] The testator expressly declared in his will that it was his desire that his former wife, Dawn Zammit, and the plaintiff do not under any circumstances receive any benefit or part of his estate as he believed they had been adequately provided for.

[38] Natalie Amanda Melville was born on 27 July 1975. She is the only child of the testator and Elizabeth Winter. Ms Melville is the half sister of the plaintiff and the half sister of Wayne Melville and Glen Melville. Ms Melville largely grew up as an only child. She had a very close relationship with the testator. She was well cared for as a child. When her mother separated from the testator in or about 1991 she continued to live with him. She took on all domestic responsibilities including cooking, cleaning and shopping. As a result of the pressure imposed on her by assuming domestic responsibilities she failed year 12. After high school she began a TAFE course at the Northern Territory University. She transferred to a degree course after three years at TAFE. She received Austudy during her studies. She continued to live at home and the testator supported her during this time by paying for food, power, water and telephone bills. Austudy covered her cost of petrol and paid for some books. Ms Melville worked a number of jobs part time during most of the time that she was studying.

[39] At the completion of her studies Ms Melville attained an Associate Diploma of Business and Applied Computing and a Bachelor of Business Majoring in Information Technology. Throughout the six years of university she continued to cook for the testator four nights a week and she kept food in the fridge for him on other occasions. She cleaned the house periodically and she did the washing and the shopping regularly. She took the testator to consult with his doctor and she looked after him when he was unwell.

[40] When Ms Melville completed university and she started to work full time she continued to live with the testator. She contributed to the household bills. However, the testator did not require her to pay any board. She paid for a component of the telephone bill and she put money towards the power and water bills. During 1999 and 2000 Ms Melville took time off work to take the testator to consult doctors and to various other medically related appointments. When the testator was diagnosed with an aggressive tongue tumour which required major surgery followed by radiotherapy she became the testator's full time carer and took an indefinite period of unpaid leave from work to travel with him to Adelaide. During the three months that they were in Adelaide she took on all carer responsibilities, arranged all flights, accommodation and appointments, accompanied the testator everywhere, obtained the testator's food, medicated him, bathed him and generally supported the testator. She received a carer's pension and an allowance during this time.

[41] During 2001 while the testator appeared to be in improved health Ms Melville took some time away from Darwin. She went overseas in 2002 for about 12 months. Prior to going overseas Ms Melville took steps to try and ensure that the testator would be able to live on his own. She wrote and discussed with the testator a detailed list of contact numbers and she wrote down what he had to do and who he had to talk to regarding any appointments or other routines. She encouraged him to learn to use the ATM at supermarkets and to access his bank account instead of getting cheques cashed at the Howard Springs Tavern. Ms Melville arranged for Barbara Powers, a close friend, to visit the testator once a week to check on him. She stocked the household with items so that he would not have to shop for them and while she was overseas she made every effort to maintain regular contact with the testator. She telephoned him, wrote letters and sent post cards at regular intervals.

[42] In or around November 2002 while Ms Melville was overseas she learned that her mother, Elizabeth Winter, had a recurrence of breast cancer and it was necessary for her mother to undergo chemotherapy. As a result she returned Australia in early January 2003. She found that her mother's health was considerably worse than she had been led to believe and that her mother was not expected to live for more than six months. Ms Melville decided to stay with her mother and her mother's partner, David, and to spend time with them and support them as much as she could. She lived with her mother for three months. She then moved to Brisbane to obtain employment. She was close enough to see her mother in case of an emergency. Ms Melville lived in Brisbane for just over one year.

[43] While she was living in Brisbane Ms Melville travelled to Darwin to see the testator every six months. In late January 2003 she flew up to Darwin for approximately four days for the testator's 70th birthday. She returned to see the testator in August 2003 and again in February 2004. She telephoned him every Sunday and often during the week.

[44] Ms Melville telephoned the testator on a Sunday about two weeks before he passed away. The testator told her that he had been sick. He said he had a chest infection and he had been feeling unwell. She advised him to go to the doctor as his condition could turn into pneumonia. Ms Melville kept in contact with the testator and Barbara Powers and learned that he had been to the doctor and had been prescribed medication. The testator was admitted to hospital on 1 June 2004 and on 3 June 2004 Ms Melville spoke to the testator. He passed away the following day.

[45] At the time of hearing the application Ms Melville was employed by Fujitsu Australia as a Business Analyst. She does work for large government agencies on their computer systems. She works as an intermediary between the users and the developers of computer systems. Ms Melville constructs the system documentation based on the user and developer requirements. She earns approximately $65,000 a year. She was a beneficiary under her mother's will. Ms Melville received her mother's jewellery which consisted of two rings that belonged to her grandmother.

[46] Wayne Melville is the son of the testator and Dawn Zammit. In 1967 he came to Darwin to live with the testator. Mr Melville was 8 years of age at the time. He started helping the testator out at the Girraween Road property in about 1976 when he was about 17 years of age. He cleared fallen timber on the weekends. Later he helped the testator dig the foundations for the house at Girraween Road and with the concreting.

[47] In about 1977 Mr Melville left Darwin to travel around Australia. He first lived with his mother in country Victoria and then he obtained employment in different States of Australia. He returned to Darwin in 1984. When he returned to Darwin he lived with the testator for about 6 years. He had various jobs including panel beater, storeman and courier driver. He continued to help the testator around the Girraween Road property during this period of time. The testator was not in good health. He had arthritis and he appeared to be in a lot of pain. Mr Melville helped the testator by operating a tractor with a slasher to keep the grass down, mowing the lawns, spraying fertilizer on the mangoes, helping harvest the mangoes, fixing the roof and painting the interior of the upstairs part of the house.

[48] In 1990 or thereabouts Mr Melville moved into Darwin to live. He lived in Darwin until 2001 when he first obtained employment at the McArthur River Mine. During the time that he lived in Darwin Mr Melville continued to visit the testator and he helped him by doing maintenance on the Girraween Road property. He did the mowing, looked after the mangoes and went to the shop for him. He occasionally made the testator's bed and cooked a meal for him if Ms Melville was not there. The testator continued to drink heavily throughout the period of time that he lived at Girraween Road. The testator was sober from about 6.30am to 8.30am and then he began to drink. The testator drank cask wine and rum. The testator's mood altered during the day. In the morning he was a normal nice bloke but by the end of the day he was nasty and sarcastic.

[49] At the time that the testator died Mr Melville was living at Leanyer. He rented a room in a unit at Bushlands Court. He was working at McArthur River Mine two weeks on and one week off. During his week off it was his practice to go out and see the testator and assist him with any maintenance that needed to be done around the property at Girraween Road.

[50] At the time he gave his evidence at the hearing of this application Mr Melville was employed by Compass Group Australia doing catering for the McArthur River Mine. He was earning about $45,200 per annum before tax. He owned a 1989 EA Ford Falcon motor vehicle. At the time of swearing his first affidavit he owed approximately $2000 on the vehicle and the vehicle was worth approximately $2000. He owed about $20,000 on his credit cards. His superannuation was worth about $5000.

[51] Once in about 1992 and again in about 1998 the testator told Mr Melville that Lot 7 Girraween Road would be left to Natalie and Lot 8 would be left to him.

[52] Glen Melville is the son of the testator and Dawn Zammit. At the time of his birth the testator denied that he was his son. He was raised by his mother for three years and thereafter by his grandparents. He lived with his grandparents until he was 15 years of age. When he was eight years of age he learned that the testator was coming to visit his mother. He asked if he could meet the testator but the testator refused to meet him. From then on he made no further attempt to see the testator.

[53] The first time Mr Melville met the testator he was 15 years of age. He found an apprenticeship in Darwin and the testator learned that he was living in Darwin. He invited Mr Melville to meet him at a barbecue that he was having. The next day the testator offered Mr Melville an apology for the past which Mr Melville accepted. Over the next six years in Darwin he attempted to start his own life and he only occasionally visited the testator. On his 21st birthday he received a present from the testator that he still has to this day. Mr Melville left Darwin in January 1987 and he did not see the testator again. However, he kept in contact with him. Over the years their relationship became more distant until Mr Melville married and had children of his own. In the last seven years before the testator died their relationship appeared to be at its strongest. Mr Melville often sent him photos of his two grandchildren and the testator would send the boys gifts for their birthdays. When he heard of the testator's death Mr Melville was sad to think that the testator would never meet his grandchildren. However, he felt at ease because he had made his peace with the testator before the testator died.

[54] The facts that the plaintiff is an able bodied person who is able to maintain and advance herself in life, is in a stable relationship, has accumulated some assets and is receiving a slightly above average income do not mean that she cannot hope to succeed in her application to the court: Hughes v National Trustees Executors and Agency Co of Australia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147 to 148. Relief may be granted where special need has not been demonstrated: Hughes v National Trustees Executors and Agency Co of Australia Ltd (supra); McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 576; Ross v Public Trustee for the NT (supra) at par [15]. There is a prospective element involved in the examination of the plaintiff's circumstances: Ross v Public Trustee for the NT (supra) at par [26]; Re McCaffrey (1982) 29 SASR 582 at 585.

[55] The plaintiff has a financial burden in meeting the mortgage payments on her home at Lakes Crescent and in accumulating sufficient funds and other assets to live on in her retirement. The testator's disposition to the plaintiff's son does not ease the plaintiff's financial burden. There are also contingencies that the plaintiff may not find equally remunerative employment or will not find employment for the whole of the period of time that she intends to work. While these contingent burdens are eased by the redundancy payment to which the plaintiff is entitled they are still a relevant consideration. It is ordinarily quite difficult to find employment at the plaintiff's age. While her good employment record and experience will be of assistance in finding and retaining further employment, her position is not assisted by her lack of tertiary qualifications.

[56] In consideration of all of the circumstances of the case I find that adequate provision has not been made for the proper maintenance, education and advancement in life of the plaintiff. The present case is distinguishable on the facts from Vigolo v Bostin [2005] HCA 11; (2005) 79 ALJR 731. Nor, in my opinion, was the plaintiff's conduct such as to disentitle her to the benefit of an order under the Act.

[57] The more modern authorities place significant stress on the existence of the parental relationship and the primary duty of a parent to provide adequately for the proper maintenance, education and advancement in life of all of his or her children: Howarth v Reed (unreported, SC(NSW) Powell J, 4431 of 1988, 4432 of 1988, 21 March 1991, 15 April 1991); Gorton v Parks (1989) 17 NSWLR 1 at 10A; Reid v Austin (unreported, CA(NSW), Hope, Samuels and Priestley JJA, CA 274 of 1984, 2 September 1985). Estrangement of a child from a parent has been found not to be conduct disentitling a plaintiff to the benefit of an order of redistribution of an estate where it has occurred in circumstances where the deceased has avoided contact with the applicant; the contact was discontinued by the plaintiff because of the difficult personality of the deceased: Gorton v Parks (supra); or the plaintiff deeply resented his or her parents remarriage or subsequent relationship: Howarth v Reed (supra).

[58] In the present case the plaintiff's estrangement from the testator was caused by a number of factors including his alcoholism and difficult personality; his support for her ex-husband; the plaintiff's belief that the testator did not show a sufficient interest in her; the plaintiff's relationship with the testator's various partners after he separated from her mother; and the testator's failure to contact the plaintiff once the estrangement occurred. Although the estrangement was for a very long time, 23 years, and lasted until the death of the testator, I do not conclude that she disowned him. The plaintiff intended to make peace with the testator before he died. This is demonstrated by the fact that she telephoned the hospital to make arrangements to see him when she thought he was dying of cancer. While it is true that after she spoke to her sister about the testator's condition she only telephoned the testator on one more occasion I do not find that the testator's moral obligation to the plaintiff was abrogated. Interestingly the testator did not make a declaration in his will that he considered his parental obligations had ceased because of the plaintiff's conduct. He merely stated that the plaintiff had been adequately provided for. Sadly in the end none of the testator's children was present when he died. I think a fair assessment of the position is that the plaintiff simply found it too painful to see the testator.

[59] Having found that the jurisdictional threshold has been overcome, it is necessary to consider the question of quantum. A relevant consideration is the relationship between the testator and the other persons who have legitimate claims on the estate. In my opinion both Ms Natalie Melville and Mr Wayne Melville have a greater moral claim to benefit from the deceased's estate than the plaintiff. Both of them, in their own way, had a close relationship with the deceased. Both of them provided significant support and assistance to the testator during his life. Ms Melville provided very significant care to the testator during his life. She did so in difficult circumstances. While Ms Melville has considerable personal capacity and resources by way of education and employment, both she and Mr Wayne Melville have less financial resources than the plaintiff. Mr Wayne Melville has the least capacity and personal resources. The size of the testator's estate, on the other hand, is not insignificant. It is equipped to cope with all of the claims that are placed on it.

[60] In my opinion, a just and wise father would have made some provision to assist the plaintiff obtain a home of her own and some provision for contingencies. Given the plaintiff's financial burdens and her capacity and resources, including her entitlement to a redundancy payment, adequate provision for her proper maintenance, education and advancement in life would be made if provision were made in the sum of $80,000. This amount should be charged on the interest in the testator's estate given to Ms Natalie Amanda Melville. Such a distribution recognises the special relationship that Ms Melville had with the testator and her capacity and resources. It also recognises the relationship that the plaintiff's brothers had with the testator and ensures that they receive adequate provision from the estate.

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